National Treasury Employees Union, Chapter 168 and U.S. Department of the Treasury, Customs Service, Port of Baton Rouge, Louisiana

[ v55 p237 ]

55 FLRA No. 41

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 168
(Union)

and

U.S. DEPARTMENT OF THE TREASURY
CUSTOMS SERVICE,
PORT OF BATON ROUGE, LOUISIANA
(Agency)

0-AR-3052

_____

DECISION

February 26, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Cabaniss for the Authority.

I. Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Mollie H. Bowers filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied a grievance alleging that the Agency had committed an unfair labor practice (ULP) in violation of section 7116(a)(1) and (5) of the Statute by "failing to consult or to negotiate" with the Union concerning a change in "overtime policy" with respect to vessel boarding from midnight to 8:00 a.m. at one of its facilities. Award at 3.

      For the reasons that follow, we find that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the Union's exceptions.

II. Background and Arbitrator's Award

      The grievants are Customs Inspectors, who perform various vessel boarding jobs. In March 1995, the Agency met with the grievants to inform them that, due to budget constraints, overtime vessel boarding between the hours of 12:00 midnight and 8:00 a.m. was eliminated indefinitely. The Agency did not notify the Union of the meeting and did not provide the Union with advance [ v55 p238 ] notice that the subject overtime would be eliminated.

      The Union filed a grievance, alleging that the Agency had committed a ULP in violation of 5 U.S.C. § 7116(a)(1) and (5) by "failing to consult or to negotiate about the overtime change" with respect to "overtime assignments occurring after midnight" at the Agency facility. Award at 3. The Agency sustained the grievance in part and denied it in part. The grievance was submitted to arbitration. In the absence of the parties' stipulation to the issue, the Arbitrator framed the issue as follows:

Whether the Agency violated the Agreement by discontinuing boarding vessels at overtime at Baton Rouge; if so, did that constitute an Unfair Labor Practice; what is the appropriate remedy?

Id. at 2.

      At arbitration, the Agency asserted that its decision to eliminate the subject overtime was not arbitrable for several reasons, including its claim that the issue of overtime has been excluded by the parties from the grievance procedure. According to the Agency, the parties agreed that "the Agency has sole authority to determine overtime requirement assignments, under Article 22, Section 1.B. of the [parties'] Agreement." [n1]  Id. at 12. The Agency further argued that the Union had not shown a contrary binding past practice or that the Agency's actions were contrary to national policy.

      The Union contended that the grievance was arbitrable under 5 U.S.C. § 7116(a)(1) and (5). The Union argued that the Agency's "unilateral change in the midnight to 8:00 a.m. vessel boarding practice, without notice to the Union, constituted an Unfair Labor Practice[,]" because it was more than a de minimis change in employment conditions and was a matter about which the Agency was required to bargain. Id. at 13. The Union asserted that there is no provision covering or concerning vessel boarding practices in the parties' agreement. The Union claimed that, according to the Arbitrator, "`vessel boarding practices--the matter in dispute--are only tangentially related to overtime and the overtime sections' of the [parties'] Agreement." Id. at 14. Finally, the Union argued that the Agency violated its agreement with the Union that local parties could not make changes in vessel boarding practices while negotiations were pending at the national level. [n2] 

      The Arbitrator found that the Union's ULP charge had been resolved during the course of the grievance procedure when "the Agency admitted . . . [that] it `should have notified the Union' of that overtime elimination." Id. The Arbitrator found no need to address this issue further.

      The Arbitrator also found that the Union must demonstrate that "the Agency acted in contravention to its contractual relationship with the Union in eliminating overtime vessel boarding[.]" Id. at 15. The Arbitrator explained that it is well established that in contract interpretation and enforcement actions, "clear and unambiguous . . . language is the best evidence of the parties' intentions as to what they agreed upon." Id. Applying these principles, the Arbitrator concluded that the Agency did not violate "its contractual authority in eliminating the overtime in question," because the language of Article 22, Section 1. B., "explicitly gives the Agency the authority to determine its use of overtime in the circumstances of this case." Id. at 16. The Arbitrator found that the Agency eliminated the overtime work in question in order to deal with "severe and unexpected budgetary short falls." Id.

      According to the Arbitrator, correspondence between the parties indicated that there was disagreement as to whether there was any binding practice or policy on vessel boarding. Based on this finding, the Arbitrator determined that "[t]he existence of such disagreement negates any applicable or binding past practice or policy precluding the elimination of the overtime vessel boarding in question." Id. at 17. The Arbitrator also considered a National Vessel and Boarding Policy Memorandum of Understanding between the parties at the national level, but found that this memorandum became effective January 1, 1998, well after the time in question and, therefore, did not govern the instant dispute. Id.

      Finally, the Arbitrator determined that as the Agency did not improperly eliminate the subject vessel boarding overtime, it was not necessary and "would be [ v55 p239 ] counter productive to the parties' relationship" to address the Agency's contention regarding the arbitrability of this dispute. Id. The Arbitrator further stated that "nothing in th[e] decision shall be considered as a ruling one way or another on that contention." Id.

III. Positions of the Parties

A. Union's Exceptions

      The Union asserts that the Arbitrator exceeded her authority under the national Agreement. According to the Union, the Arbitrator "refused to resolve the arbitrability issue . . . placed before her by the Agency . . . ." Exceptions at 25. Referencing Article 32, Sections 9.A. and 10 of the national Agreement, the Union contends that the "parties have expressly agreed that the Arbitrator must first address and resolve issues of arbitrability prior to addressing the merits of the grievance." [n3]  Id. at 26. According to the Union, it was important for the Arbitrator to resolve the arbitrability issue concerning whether the Agency's decision to eliminate overtime vessel boarding from midnight to 8:00 a.m. was arbitrable because resolution of this issue would provide "stability to the parties' relationship by providing important guidance concerning the benefit, or futility, of filing future grievances over the same or similar matters." Id. at 25-26.

      The Union asserts that the Arbitrator, by refusing to address the issue of arbitrability, "modified and/or deleted an important and express provision of the [parties'] national Agreement[,]" and, thus, exceeded her authority under such Agreement. Id.

      The Union further claims that the award fails to draw its essence from the national Agreement because the Arbitrator decided the merits before resolving the arbitrability issue. According to the Union, Article 32, Section 10 requires that the arbitrability issue be decided before the merits can be reached.

      The Union next contends that the award is contrary to sections 7116(a)(1) and (5) and 7118 of the Statute. The Union cites American Federation of Government Employees, Local 940 and U.S. Department of Veterans Affairs, Philadelphia, Pennsylvania, 52 FLRA 1429, 1440 (1997) (AFGE, Local 940) for the proposition that an arbitrator must use the same analytical approach as the Authority when deciding ULP grievances. According to the Union, this analytical approach requires a prima facie showing that an agency's action constitutes a violation of a statutory right, i.e., a demonstration that a change in conditions of employment occurred, and that the agency failed to give the exclusive representative an opportunity to bargain prior to implementation.

      The Union claims that "the Arbitrator found that the Union raised a statutory [ULP when] it alleg[ed] that the Agency committed [a ULP by] unilaterally . . . eliminating all vessel boarding jobs on overtime between midnight and 8:00 a.m." Exceptions at 14. However, the Union maintains that by finding that the ULP charge was resolved during the course of the grievance procedure, "the Arbitrator failed or refused to conduct the required analysis of the Union's [ULP] charge." Id. The Union asserts that the instant case is similar to AFGE, Local 940, in which the Authority determined that, because the arbitrator did not make the proper findings of fact, as required under the ULP analytical approach, the award was contrary to law. The Union contends that "[w]hen a party properly alleges a statutory [ULP], whether in [a] complaint or grievance, it is legal error for the hearing official to refuse to address the [ULP]." Exceptions at 31.

      Additionally, the Union argues that the award is contrary to section 7116(a)(1) and (5) of the Statute, because it proved by a preponderance of the evidence that the Agency committed a ULP. Further, the Union alleges that the award is contrary to section 7118(a)(7) because, although the Arbitrator found a ULP violation, she did not order a remedy as required by that section.

      Finally, the Union argues that the award is deficient because it is based on a nonfact--that the Agency admitted its failure to bargain at the first step of its internal grievance process. The Union asserts that the Agency did not admit that it should have notified the Union of its elimination of overtime vessel boarding between midnight and 8:00 a.m., but rather, admitted that it should have notified the Union of the meeting concerning the determination to discontinue boarding. The Union maintains that the Arbitrator's factual finding is "clearly erroneous and a nonfact." Exceptions at 33. The Union asserts that the Arbitrator would not have refused to address the ULP if she had not erroneously found that the Agency admitted to the failure to bargain issue. [ v55 p240 ]

B. Agency's Opposition

      The Agency contends that the Arbitrator properly framed the "only issue" that was before her--"[o]vertime boarding of vessels"--based on the information presented by the parties. Opposition at 3. According to the Agency, the "parties could not agree to the precise stipulations," and, therefore, the Arbitrator framed the issue "in accordance with the authority bestowed upon [her]." Id. at 3, 4. Given this, the Agency maintains that it is within the Arbitrator's authority to determine the issue.

      According to the Agency, the Arbitrator examined the parties' agreement and found that "Article 22, Section 1.B. . . . clearly and unambiguously addressed how overtime assignments would be determined." Id. at 4. The Agency cites Navy Resale Activity, Naval Station, Charleston, South Carolina, 49 FLRA 994, 1001-02 (1994) (Member Talkin dissenting), for the proposition that once the parties have negotiated a contract provision, "there is no need to notify the Union or to negotiate with the Union over an issue which is covered by the provision." Exceptions at 5.

      The Agency claims that "the Arbitrator found [that] the Agency did not commit [a ULP] by discontinuing certain overtime assignments without negotiating with the Union." Id. According to the Agency, the Union is merely disputing the Arbitrator's findings of fact and attempting to relitigate the case. The Agency asserts that "[t]he decision was based [on] the findings and evaluation of the central fact as presented by the parties and determined by the Arbitrator." Id. at 6.

IV. Analysis and Conclusions

A. The Arbitrator Did not Exceed Her Authority

      Arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration, resolve an issue not submitted to arbitration, disregard specific limitations on their authority or award relief to those not encompassed within the grievance. American Federation of Government Employees, Local 1546 and U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Region West, 52 FLRA 94, 98 (1996). However, when the parties fail to stipulate the issue, the arbitrator may formulate it on the basis of the subject matter before him or her. See National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Base, New London, Connecticut, 51 FLRA 1500, 1502 (1996); U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 51 FLRA 1161, 1164 (1996) (Defense Contract Audit Agency). Such formulations are accorded substantial deference. Id.

      The Union asserts that the Arbitrator, by refusing to resolve the arbitrability issue, modified and/or deleted an important and express provision of the parties' national agreement and, thereby, exceeded her authority. However, the parties did not stipulate the issue to be resolved. Instead, the Arbitrator evaluated the information presented to her, including the parties' arguments, and formulated the issue to be decided. As she framed the issue, the Arbitrator focused on whether the Agency violated the parties' agreement by discontinuing boarding vessels at overtime and, if so, whether such conduct constituted an unfair labor practice. In finding that the Agency did not violate the parties' agreement, the award is directly responsive to the issue as formulated by the Arbitrator. [n4]  Accordingly, we find that the Union has failed to demonstrate that the Arbitrator exceeded her authority. See, e.g., Defense Contract Audit Agency, 51 FLRA at 1164-65.

B. The Award Draws Its Essence from the Agreement

      In order for an award to be found deficient because it does not draw its essence from the collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990) (OSHA).

      In this case, the Union argues that the award does not draw its essence from Article 32, Section 10 of the [ v55 p241 ] national Agreement because the provision requires the Arbitrator to address the Agency's arbitrability contention before reaching the merits of the case. Article 32, Section 10 of the parties' agreement provides that "[t]he arbitrator shall have the authority to make all grievability and/or arbitrability decisions. The arbitrator should not address the merits of the grievance if the case is found to be non-arbitrable." The Arbitrator exercised her authority under the agreement. She interpreted and applied the contractual provisions and determined that it was unnecessary to address the Agency's arbitrability claim. As the Arbitrator did not determine that the grievance was nonarbitrable, she was not precluded from addressing the merits. We find, therefore, that the Union has not shown that the Arbitrator's award is irrational, implausible, unfounded, or evidenced a manifest disregard of the agreement. See OSHA, 34 FLRA at 575-76. In this connection, the Authority has held that the interpretation and application of the collective bargaining agreement is a question solely for the arbitrator in that it is the arbitrator's construction of the agreement for which the parties have bargained. Id. at 576. Accordingly, we find that the Union has failed to establish the award does not draw its essence from the parties' agreement.

C. The Award Is Not Contrary to 5 U.S.C. § 7116(a)(1) and (5) and 5 U.S.C. § 7118

      Under section 7122(a)(1) of the Statute, an arbitration award will be found deficient if it conflicts with any law, rule or regulation. Overseas Education Association and U.S. Department of Defense Dependents Schools, Arlington, Virginia, 51 FLRA 1246, 1251 (1996). As the Union's exceptions involve the award's consistency with applicable law, the Authority reviews questions of law raised by the award and the Union's exceptions de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995). In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law, based on the underlying factual findings. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id. The Authority also defers to an arbitrator on questions of contract interpretation. See id. at 1709 n.4.

      Alleged violations of section 7116 may be raised as ULP charges under the statutory procedure set forth in section 7118, or as grievances under a negotiated grievance procedure. When a grievance under section 7121 of the Statute involves an alleged ULP, the arbitrator must apply the same standards and burdens that would be applied by an ALJ in a ULP proceeding under section 7118. In a grievance alleging a ULP by an agency, the Union bears the burden of proving the elements of the alleged unfair labor practice by a preponderance of the evidence. See American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, U.S. Immigration and Naturalization Service, United States Border Patrol, 54 FLRA 905, 909 (1998) (INS). However, as in other arbitration cases, including those where violations of law are alleged, the Authority defers to an arbitrator's findings of fact. See, e.g., U.S. Department of Commerce, Patent and Trademark Office and National Treasury Employees Union, Chapter 243, 52 FLRA 358, 367 (1996).

      In this case, the Arbitrator found that the Agency's action in eliminating the subject vessel boarding overtime was not in violation of the parties' agreement because the "clear and unambiguous . . . language" of Article 22, Section 1.B. permits the Agency to determine the use of overtime. Award at 15. As the Union argues, the Arbitrator did not apply the proper analytical framework for handling ULPs as set forth by the Authority in AFGE, Local 940, 52 FLRA at 1436. However, for the reasons set forth below, the fact that the Arbitrator failed to provide the proper analytical framework for resolving the ULP in dispute in this case does not render the award deficient.

      In this connection, the Union alleges that it proved a prima facie case that the Agency violated its statutory rights under sections 7116 and 7118 by not notifying or bargaining with the Union over the elimination of the subject overtime. In determining whether an agency has an obligation to provide notice to and bargain with a union over a change in conditions of employment, the Authority ordinarily considers first whether the agency changed conditions of employment and, if so, whether those changes had more than a de minimis impact on employees' conditions of employment. See, e.g., United States Customs Service, Southwest Region, El Paso, Texas, 44 FLRA 1128, 1129 (1992). However, this inquiry need not be pursued if the Agency is under no [ v55 p242 ] obligation to bargain over the subject change because the matter is covered by the parties' agreement. See, e.g., U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C., 51 FLRA 1274, 1277 (1996) (INS). Thus, if the parties' agreement covers the overtime matter in question, there is no need to notify or negotiate such issue with the Union. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004, 1018 (1993) (SSA).

      Here, the Arbitrator determined that the language of Article 22, Section 1.B., "explicitly gives the Agency the authority to determine its use of overtime in the circumstances of this case." Award at 16. Thus, based on the Arbitrator's interpretation of the agreement, we find that the matter involved in this dispute--the Agency's elimination of the subject overtime--is covered by the parties' agreement. Consequently, the Agency was not obligated to notify or negotiate with the Union over the elimination of vessel boarding overtime from midnight to 8 a.m. See, for example, INS, 51 FLRA at 1277-79 (1996). As the Arbitrator's finding on this matter is a complete defense to the unfair labor practice, the Arbitrator's failure to apply SSA does not render the award deficient. See INS, 54 FLRA at 910 n.6. Also, this case is distinguishable from AFGE, Local 940 because, unlike in AFGE, Local 940, the Arbitrator's interpretation of the agreement here supports a conclusion that the award is not deficient under the Statute. Accordingly, as the issue of overtime is "covered by" Article 22, Section 1.B., the award is not contrary to section 7116(a)(1) and (5) of the Statute and, thus, a remedy is not appropriate under section 7118(a)(7).

D. The Award Is Not Based on a Nonfact

      To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993).

      The Union in this case contends that the award is based on a nonfact--that the Agency admitted its failure to bargain at the first step of the internal grievance process. According to the Union, the Agency did not admit in the grievance process that it failed to provide notice to the Union on the elimination of the subject overtime. We find because the matter in dispute is "covered by" the parties' agreement, there was no obligation here by the Agency to provide any notice to the Union of this elimination of overtime. Therefore, the claimed nonfact, even if clearly erroneous, would not lead to a different result. Accordingly, the Union's assertion that the award is based on a nonfact provides no basis for finding the award deficient. See, e.g., U.S. Department of the Treasury, United States Customs Service, New York, New York and National Treasury Employees Union, Chapter 153, 51 FLRA 743, 745-46 (1996).

V. Decision

      The Union's exceptions are denied.






Footnote # 1 for 55 FLRA No. 41

   Article 22, Section 1, B of the parties' agreement provides, in pertinent part:

When determined to be necessary by the Employer,overtime will be assigned by the Employer and theEmployer, in accordance with law, retains the soleright to determine the circumstances under whichovertime will be required, and the legal right to determine the numbers, types, and grades of employeesto be assigned to overtime work projects or tours ofduty. It is understood that the Employer retains theright to hire, reassign, and detail employees in order to alleviate staffing imbalances which may occur as a result of limitations placed upon the permissible amount of overtime of Customs employees.

Footnote # 2 for 55 FLRA No. 41

   From 1994 to 1998, the Agency and the Union, at the national level, were negotiating a uniform national policy on vessel boarding.


Footnote # 3 for 55 FLRA No. 41

   Article 32, Sections 9.A. and 10 of the parties' agreement provide, in pertinent part, as follows:

Section 9.A. The arbitrator shall have no authority to change, alter, modify, delete or add to the terms and provisions of this Agreement and/or applicable policies and regulations. . . . .
Section 10. The arbitrator shall have the authority to make all grievability and/or arbitrability decisions. The arbitrator should not address the merits of the grievance if the case is found to be non-arbitrable.

Exceptions, Attachment H.


Footnote # 4 for 55 FLRA No. 41

   Moreover, before the Arbitrator, the Agency asserted that the dispute was not arbitrable because it was excluded from the grievance procedure by Article 22, Section 1.B. The Union challenged the Agency's assertion, claiming that the dispute was arbitrable. Given the Union's argument